IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT L. HILLMAN,

Plaintiff,

vs. Civil Action 2:12-cv-850

Judge Frost

Magistrate Judge King

WILLIAM JOSEPH EDWARDS,

et al.,

Defendants.

OPINION AND ORDER

Plaintiff, a state inmate, sought to initiate this action without

prepayment of fees or costs. On September 21, 2012, the Magistrate

Judge issued a Report and Recommendation, Doc. No. 2, recommending

that plaintiff’s application for leave to proceed in forma pauperis be

denied. Specifically, the Magistrate Judge concluded that plaintiff

was prohibited from proceeding in forma pauperis under 28 U.S.C. §

1915(g) (also known as the “3-Strikes Provision”). Plaintiff has

filed timely objections, Doc. No. 4, and a motion to supplement the

objections because of an inadvertent failure to attach an exhibit

mentioned in the objections. Doc. No. 5. Plaintiff’s motion to

supplement the objections, Doc. No. 5, is GRANTED. For the reasons

that follow, plaintiff’s objections are OVERRULED. The Report and

Recommendation, Doc. No. 2, is ADOPTED and AFFIRMED. 

The Prison Litigation Reform Act [“PLRA”] prohibits the grant of

leave to proceed in forma pauperis under certain circumstances:

In no event shall a prisoner bring a civil action or appeal a

judgment in a civil action or proceeding under this section if

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the prisoner has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or

appeal in a court of the United States that was dismissed on

the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted, unless the prisoner

is under imminent danger of serious physical injury. 

28 U.S.C. § 1915(g). The Magistrate Judge concluded that plaintiff

“has, on at least 3 occasions, brought an action in this Court that

was dismissed for failure to state a claim upon which relief can be

granted. Hillman v. Simms, 2:09-cv-810 (S.D. Ohio December 3, 2009);

Hillman v. Simms, et al., 2:08-cv-717 (S.D. Ohio March 11, 2009);

Muff, et al. v. Collins, 2:08-cv-1[0]27 (S.D. Ohio January 29, 2009).” 

Report and Recommendation, pp. 1-2. 

Plaintiff objects to the Report and Recommendation on the basis

that Muff v. Collins, 2:08-cv-1027 (S.D. Ohio January 29, 2009),

cannot be his “third strike” for purposes of 28 U.S.C. § 1915(g).1

Plaintiff argues that there is “nothing in the records of the Court

that (Hillman) Plaintiff consented to inmate Muff using his name in

said legal proceeding, or any request made by (Hillman) Plaintiff in

the proceeding.” Doc. No. 4, p. 6. To the contrary, plaintiff was a

named plaintiff in Muff v. Collins, 2:08-cv-1027 (S.D. Ohio January

29, 2009), and the Complaint in that case, Doc. No. 4, bears

plaintiff’s signature. Id. at 9, 11. That civil action was also

dismissed for failure to state a claim upon which relief may be

granted. See Muff v. Collins, No. 2:08-cv-1027, 2009 WL 233561, at *3

1

 Plaintiff also objects on the basis that Hillman v. Simms, et al.,

2:08-cv-1089; Hillman v. Edwards, 2:11-cv-501; and Hillman v. O’Brien, et

al., 2:11-cv-607, should not be counted against him for purposes of the 3

Strike Rule. The Magistrate Judge did not, however, count any of these cases

against plaintiff for purposes of the 3 Strike Rule. See Report and

Recommendation, p. 2 n.1.

2

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(S.D. Ohio Jan. 29, 2009). Accordingly, Muff v. Collins, 2:08-cv-1027

(S.D. Ohio January 29, 2009), is the third action brought by plaintiff

in this Court during his incarceration that was dismissed for failure

to state a claim upon which relief can be granted.2 Plaintiff is

therefore prohibited under 28 U.S.C. § 1915(g) from proceeding in

forma pauperis in this action.

Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de

novo review of the Report and Recommendation. This Court has

carefully considered the entire record. For the foregoing reasons and

for reasons detailed in the Magistrate Judge's Report and

Recommendation, plaintiff’s objections, Doc. No. 4, are OVERRULED. 

The Report and Recommendation, Doc. No. 2, is ADOPTED and AFFIRMED. 

Plaintiff’s motion for leave to proceed in forma pauperis, Doc. No. 1,

is DENIED. 

If plaintiff intends to pursue this action, he must pay the full

$350.00 filing fee within thirty (30) days. His failure to do so will

result in the dismissal of the action for failure to prosecute.

 /s/ Gregory L. Frost 

Gregory L. Frost

 United States District Judge 

2

Plaintiff does not object to the Magistrate Judge’s conclusion that

Hillman v. Simms, 2:09-cv-810 (S.D. Ohio December 3, 2009), and Hillman v.

Simms, et al., 2:08-cv-717 (S.D. Ohio March 11, 2009), count against him for

purposes of 28 U.S.C. § 1915(g). Plaintiff also does not object to the

conclusion that the claims sought to be asserted in this action do not suggest

that he is under imminent danger of serious physical injury. 

3

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